Ask the Expert: Is Organ Donation Covered under FMLA?

Question:  Is organ donation covered under FMLA? This would be for the donor, not the recipient. Would it make a difference if the donation was for a friend vs a FMLA covered family member (e.g., mother, father, spouse, child) ?

 Answer from the experts at HR.BLR.com:  Voluntary organ donation likely is covered by the Family and Medical Leave Act (FMLA) if the donation requires inpatient care for the donor.

The FMLA allows eligible employees to take up to 12 weeks of job-protected leave for various family and medical reasons, including for their own serious health conditions. It also allows eligible employees to take time off to care for a parent, spouse, or child who has a serious health condition.

The FMLA defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves either inpatient care (i.e., an overnight stay in a hospital, hospice, or residential care facility) or continuing treatment by a healthcare provider.

Since the employee would not have any “continuing treatment” issues prior to the organ donation, the only way to be covered by the FMLA initially, likely, is if the organ donation requires inpatient care. Although the FMLA does not specifically address voluntary live organ donation, the FMLA regulations do reference voluntary cosmetic surgery and indicate that cosmetic treatments (such as most treatments for acne or plastic surgery) are not serious health conditions qualifying for FMLA leave unless inpatient hospital care is required or complications develop. See 29 C.F.R. §825.113(d).

Accordingly, the same assumption likely can be made for voluntary organ donations – if inpatient care will be needed to recover from the donation, then it would be covered by the FMLA.

If the organ donation does not involve inpatient care, then it must include continuing treatment after the donation by a healthcare provider to qualify for FMLA leave. To qualify as “continuing treatment,” the condition must involve a period of incapacity of more than 3 consecutive, full calendar days, and any subsequent treatment or period of incapacity for the same condition that also involves either:

(1) Treatment by a healthcare provider two or more times within 30 days of the first day of incapacity, unless extenuating circumstances exist, or

(2) Treatment by a healthcare provider at least once that results in a regimen of continuing treatment under the supervision of the healthcare provider (The requirement for treatment by a healthcare provider means an in-person visit to that healthcare provider. The first (or only) in-person treatment visit must take place within 7 days of the first day of incapacity.) See 29 C.F.R. §825.115.

So, if the employee needed continuing treatment as defined above to recover from the donation or developed complications after the donation, he could meet the continuing treatment definition and be covered by the FMLA after the donation.

Note, too, that the fact that the donation is made for friend and not a parent, spouse, or child does not matter. The transplant itself likely would not be covered even if the recipient was a parent, spouse, or child. The employee, however, could take FMLA leave to care for a parent, spouse, or child receiving an organ transplant since that person certainly would have a serious health condition under the FMLA and would not be able to care for a friend under the FMLA (unless that friend had been “in loco parentis,” i.e., like a parent, to the employee). However, the time off still would be to care for the family member, not to donate an organ.

Even if you determine that the employee is not eligible for FMLA leave for this situation, you may want to look at your other leave policies and see if you can accommodate the request. The employee clearly is committed to helping a friend in a potentially life-saving manner and would appreciate any assistance you can provide.

Because the FMLA requirements are complex and do not specifically address voluntary live organ donations, you should consult an attorney with expertise in these issues.